Often used loosely in government contracts services parlance, the impermissible bait and switch of key personnel is prohibited for adversely impacting contract performance and integrity of the procurement system. Therefore, prospective contractors can file post-award bid protests, challenging the awardee’s impermissible bait and switch of key personnel provided they can meet specifically defined elements. In such protests, the protestor essentially alleges that the awardee made misrepresentations to the government during the acquisition process by proposing personnel that it had no reasonable basis to expect to perform on the contract. The protest is sustained if the government is found to have relied on the awardee's misrepresentations by favorably evaluating the awardee's proposal, materially impacting the overall evaluation in the process. However, not all situations involving a switch of personnel upon contract award are considered an impermissible bait and switch, partly because whether the personnel identified in an offeror’s proposal will perform on the subsequently awarded contract is generally a matter concerning contract performance. Notably, the Government Accountability Office (GAO), which is a legislative agency that performs a quasi-judicial bid protest function, does not review matters concerning contract performance. Therefore, the GAO will only review bid protests involving an impermissible bait and switch of key personnel when the protestor alleges that the awardee received an evaluation advantage by proposing personnel that it had no reasonable basis to expect to perform on the contract.
To establish an impermissible bait and switch, the protestor must establish that: (1) the awardee knowingly or negligently represented that it would rely on specific personnel critical to the performance of the contract, (2) the awardee could not have a reasonable basis to expect that the proposed personnel would perform on the contract, (3) the agency relied on the awardee’s misrepresentation, and (4) the misrepresentation had a material effect on the evaluation. In B-418034; B-418034.2, the GAO sustained one such bid protest alleging a bait and switch of key personnel for meeting these requirements. In that bid protest matter involving the “bait and switch” of an incumbent program manager, the awardee represented in its proposal that its staffing plan included the consideration of a mix of incumbent personnel who would continue employment on the follow-on effort. In its proposal, the awardee specifically identified the incumbent program manager as a key employee who would continue performing on the contract should the awardee receive the contract. The awardee’s proposal also listed the incumbent program manager’s qualifications, experience, and education.
In filing an impermissible bait and switch of key personnel protest, the protestor presented a signed declaration from the incumbent program manager, stating that the awardee had not even contacted the program manager before submitting its proposal. The program manager also represented that while the awardee did contact him after receiving the contract award, the awardee offered him a significantly lower salary for the same position. Additionally, when the program manager contacted the awardee to express his disappointment at the significantly lower salary, the awardee ceased all communications. This indicated that not only did the awardee not have a reasonable basis to expect the incumbent program manager to perform on the contract at the time of proposal submission, but that the awardee did not even intend to hire the program manager post-award. Therefore, the protestor alleged that the awardee improperly leveraged the program manager’s experience to boost its chances of receiving the award and for the government to find that its proposal was technically acceptable.
In agreeing with the protestor, the GAO determined that the awardee lacked a reasonable basis for including the program manager in its proposal. In the decision, the GAO noted that although it was neither unusual nor improper for awardees to recruit and hire incumbent personnel on a contract, mere speculation that such personnel will choose to work on the follow-on contract was insufficient to form a reasonable basis for inclusion of such personnel as part of a proposed solution. In other words, offerors may not misrepresent the commitment of incumbents by merely anticipating that the incumbents would eventually join their team upon contract award. The GAO found that including the incumbent program manager in the awardee's proposal significantly impacted the evaluation because it was used to fulfill a minimum pass/fail requirement. In sustaining the bid protest, the GAO was notably unpersuaded by the argument that the solicitation did not expressly require offerors to provide commitment letters or other representations from proposed personnel.
The deliberate use of bait and switch practices not only undermines the integrity of the procurement process but also adversely impacts contract performance. Experienced contractors understand that knowingly proposing key personnel unlikely to perform on the contract may be considered an impermissible bait and switch of key personnel and constitute a valid ground for a post-award protest. Conversely, when protesting an award based on an impermissible bait and switch of personnel, contractors should first seek to clarify whether the awardee could have reasonably expected that its proposed personnel would perform on the contract. If not, a protest alleging an impermissible bait and switch may be sustained, provided the proposed personnel gave the awardee an advantage in the evaluation phase of the solicitation, thereby materially impacting the evaluation.
This Bid Protests Insight provides a general summary of the applicable law in the practice area and does not constitute legal advice. Contractors wishing to learn more are encouraged to consult the TILLIT LAW PLLC Client Portal or Contact Us to determine how the law would apply in a specific situation.
